Rarest of Rare Doctrine

Abstract

“The rarest of rare” doctrine is a basic tenet that controls the award of the death penalty in India. Evolved by way of judicial interpretation, the doctrine seeks to ensure that the death penalty is applied only in those cases where it cannot be adequately substituted by other punishments. The doctrine is a result of a balancing act carried out between justice, society, and the constitution. This paper analyzes the laws governing capital punishment in India, the constitutional validity of the doctrine, and judicial developments through major cases like Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab. The discussion would also include an analysis of aggravating and mitigating factors along with criminological theories, besides highlighting limitations of the doctrine.

Keywords: Death Penalty, Rarest of Rare Doctrine, Capital Punishment, Sentencing Principles, Judicial Discretion

Introduction

Since the beginning, there has always been a lot of discussion about the death penalty in relation to criminal law. Although for some people this kind of punishment might act as an effective deterrent to prevent criminals from committing atrocious acts, for others, it has become increasingly hard to justify. In the case of India, the judiciary’s approach towards imposing the death penalty is quite cautious as evidenced by the creation of the “rarest of rare” doctrine.

From the name alone, the significance of this doctrine is clear in the sense that it attempts to limit the use of the death penalty to only exceptional cases where there is no other alternative form of punishment. Instead of totally abolishing the punishment, the courts have decided to try and impose regulations on its imposition.

Research Problems

1. Whether the development and interpretation of the doctrine of the “rarest of rare” have led to any consistency in its implementation, especially after the case of Bachan Singh vs State of Punjab.
2. Whether the implementation of the doctrine of the “rarest of rare” leads to fair, just, and rational decisions in the cases of capital punishment, or is it arbitrary and inconsistent?
3. Whether the implementation of the doctrine of the “rarest of rare” is consistent with the theories of criminology, specifically the concepts of deterrence, retribution, and rehabilitation of the offender.

Objectives of the Study

1. To examine the evolution and significance of the “rarest of rare” doctrine and the judicial principles regarding the implementation of the doctrine.
2. To examine whether the doctrine brings about fairness in the process of sentencing.
3. To study the theories of criminology

Legal Framework

Law related to death penalty came from[1] IPC under section 302 which is the punishment of murder & Section 300 definition of murder.  Similarly, the death penalty is imposed under other sections, including cases of terrorism or aggravated offenses.

The procedure is mainly guided by the Code of Criminal Procedure (CrPC)[2]. Section 354(3) of CrPC holds particular importance, in which it is stated that “special reasons” must be recorded for the imposition of capital punishment. This section is notable because the earlier law allowed the death penalty much more than what is allowed under the current law.

This shows that the policy in legislation is different from before, where capital punishment is only an exception and not a rule, whereas the life imprisonment is the rule.

Constitutional Validity

The problem of constitutional validity of the death penalty became one of the judicial review cases. In the Supreme Court case Jagmohan Singh vs State of Uttar Pradesh, the death penalty was found to be constitutionally valid, meaning that Article 14, Article 19, and Article 21[3] of the Indian Constitution did not make it unconstitutional.[4]

However, the jurisprudence theory saw drastic changes in the case of Bachan Singh vs State of Punjab.[5]

In this case, the Supreme Court declared that capital punishment is constitutional in nature; however, certain restrictions were placed on its application. First, the Court used the principle of “rarest of rare”, meaning that the death penalty can be imposed only when there is no way to impose a life sentence.

However, at the same time, the Court pointed out that besides the crime, one should also consider the person committing it.

However, later cases have proved that the above principles can indeed be applied, despite efforts to improve the doctrine.

Types of Punishment and Theories of Punishment

The role of punishment within criminal law encompasses a wide variety of objectives like maintenance of social order, prevention of crime, and administration of justice. Different forms and theories of punishment have developed in time in order to give reasons and ways of punishing someone.[6]

1. Forms of Punishment

• Capital Punishment

The capital punishment is one where the state sentence death penalty for serious crimes committed by the convict.  

2. Imprisonment

It means keeping the offender in custody. It can be further categorized into:

• Rigorous Imprisonment
• Simple Imprisonment

3. Life Imprisonment

Involves imprisonment for the lifetime of the offender.

4. Fine

A penalty payable either separately or together with imprisonment, depending on the seriousness of the crime committed.

5. Forfeiture of Property

If  a criminal commits a crime against the state and has become a proclaimed offender then in that case the government may forfeit his property.

Theories of Punishment

Punishment theories help understand the reasoning behind administering punishment to offenders. There are some major theories, which include the following:

1. Deterrent Theory

Deterrent Theory is concerned with prevention of crime through fear of being punished for committing the crime.

• Objective: The main aim is to deter the offender as well as others within the society (general deterrence and specific deterrence respectively).
• Basic premise is that the individual will be scared from committing any crime due to the fear of consequences
• Extremely stringent punishment such as capital punishment is founded on deterrence theory

Limitation: It can sometimes be ineffective in situations of impulsive crimes or crimes committed in moments of high emotion.

      2.Retributive Theory

The concept of “just deserts” underlies the retributive theory, which holds that an individual deserves to suffer due to his/her misdeeds.

• Goal: Punishment of the offender for suffering in accordance with the severity of the crime
• Moral responsibility is its central theme rather than deterrence
• Based on the notion that the misdeed requires punishment

3. Reformative Approach

The main focus of this theory is the reformation of the criminal.

• Aim: Transforming the offender into an upright citizen
• Involves educating and training the offender
• A widely recognized approach in today’s criminal justice system

Importance: The Indian courts are gradually becoming concerned with the possibilities of reformation while sentencing criminals, especially those condemned to death.

4. Preventive Approach

The objective of preventive approach theory is to prevent the commission of crime through incapacitation of the offender.

• Objective: Preventing the offender from committing other criminal acts
• Accomplished via imprisonment or other ways
• The theory concentrates more on the protection of society than the offender

5. Expiatory Approach

The philosophy behind this approach is that through punishment, the offender expiates his wrongdoing.

• Objective: Purging the guilt of the offender
• Moral realization and repentance encouraged

Rarest of Rare Doctrine Explained

The “rarest of rare” principle is not specifically mentioned in any legislation. It has rather emerged from judicial interpretation. The basic requirement of this principle is that the death sentence can only be awarded if the other alternative of imposing the sentence of life imprisonment is inadequate.

In Bachan Singh v. State of Punjab, the Supreme Court made it clear that courts should determine if the criminal is capable of reform and rehabilitation. In case there is any chance for reform, the death sentence cannot be imposed.

Thus, the “rarest of rare” principle embodies both principles of punishment as well as reform. Though it accepts the fact that there is some necessity of awarding punishment to criminals who have committed extremely serious offenses, it also takes into account the aspect of providing opportunities for reform.

The application of this principle necessitates the individualized consideration of each case by the courts.

Guidelines & Case Laws

Further elaboration on the doctrine occurred through the case Machhi Singh v. State of Punjab[7] in which the Supreme Court defined five types of situations where the application of the doctrine would be justified. It concerns cases of murders committed in an exceptionally cruel and brutal manner, in cases where motives are particularly heinous and/or shocking to the sense of public morality.

Such categories are listed as:

1. Manner of commission of murder
2. Motive of the crime
3. Anti-social or socially abhorrent character of the crime
4. Magnitude of the crime
5. Personality of the victim

Moreover, in the decision of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra[8], the Supreme Court underscored the importance of consistency in imposing penalties under the principle and discouraged from adopting a mechanical approach to the application of the doctrine.

Finally, Shatrughan Chauhan v. Union of India extended the scope of factors that should be taken into account during the analysis.[9]

Aggravating vs Mitigating Factors

One of the major aspects of the “rarest of rare” principle is the balance of aggravating and mitigating factors.

Aggravating factors are typically based on the seriousness of the offense. These include:

• Excessively brutal and cruel behavior
• Predatory actions
• Vulnerability of the victim (such as children and elderly individuals)
• No remorse or repentance

Mitigating factors, on the other hand, refer to the situation of the accused. These include:

• The youth or advanced age of the accused
• The probability of rehabilitation
• History of no past offenses
• Economic and psychological status

It is important for the court to weigh these factors properly to determine whether the case qualifies as being “rarest of rare.”

Criminological Theories

The doctrine is a consequence of the various criminological theories.

Under deterrence theory, the death sentence can serve as a tool of deterring the individual from committing any serious crime. Yet, whether it serves its purpose or not is still debatable.

According to retributive theory, there needs to be punishment for any wrongdoing.

Thus, in this connection, the use of capital punishment can be resorted to where there is very high moral culpability of the criminal.

On the other hand, according to the theory of reform, stress is laid upon the reformation and adjustment of the criminal to society. This theory has been accorded importance by the Indian judiciary.

“Rarest of Rare” Doctrine is an attempt to strike a balance between these theories.

Criticism

Notwithstanding its relevance, the principle has faced heavy criticism.

The first major issue is the element of subjectivity involved. Since there is no definition of the term “rarest of rare,” different judges can have different opinions.

A third concern raised by critics involves the danger of arbitrariness. It can be argued that subjective bias and judicial discretion can affect the decision-making process.

Judicial mistakes can also be considered a problem since execution cannot be reversed.

Finally, it needs to be stated that human rights organizations state that the use of death penalty contradicts the idea of human dignity and right to live. In other words, the right to live presupposes the abolition of death penalty altogether.[10]

Conclusion

The principle of “rarest of rare” can be regarded as one of the significant transformations in the juridical practice in India. Its primary goal is to make sure that death penalty can be imposed only in the rarest cases for the sake of protecting citizens’ basic human rights.

Still, the very principle testifies to the attempts of judicial authorities to find a reasonable compromise in terms of contradictory concepts like justice, prevention of future crimes, and human rights protection.[11]

However, there is still a problem associated with preserving objectivity during implementation of the given concept. What should be done is establishing certain guidelines and sentencing policy.

As a conclusion, the concept of “rarest of rare” can be considered effective, yet it depends on how successfully it can be implemented.

Reference(S):

[1] Indian Penal Code 1860, ss 300, 302.

[2] Code of Criminal Procedure 1973, s 354(3).

[3] Constitution of India 1950, arts 14, 19, 21.

[4] Jagmohan Singh v State of Uttar Pradesh (1973) 1 SCC 20 (SC).

[5] Bachan Singh v State of Punjab (1980) 2 SCC 684 (SC).

[6] K D Gaur, Textbook on Indian Penal Code (6th edn, Universal Law Publishing 2016).

[7] Machhi Singh v State of Punjab (1983) 3 SCC 470 (SC).

[8] Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009) 6 SCC 498 (SC).

[9] Shatrughan Chauhan v Union of India (2014) 3 SCC 1 (SC).

[10] Law Commission of India, Report No 262: The Death Penalty (2015).

[11] M P Jain, Indian Constitutional Law (8th edn, LexisNexis 2018).